James J. Armstrong v. Colonial Bank, N.A. ( 2008 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
OCT 6, 2008
No. 08-10888 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 06-00038-CV-ORL-22KRS
JAMES J. ARMSTRONG,
NANCY L. ARMSTRONG,
Plaintiffs-Appellants,
versus
COLONIAL BANK, N.A.,
Defendant-Appellee.
________________________
Appeal from the United States District Court
for the Middle District of Florida
_________________________
(October 6, 2008)
Before TJOFLAT, HULL and PRYOR, Circuit Judges.
PER CURIAM:
This case is a class action. The Armstrongs, proceeding pro se, brought it in
the Brevard County, Florida Circuit Court, claiming that Colonial Bank’s overdraft
charges were usurious, in violation of Fla. Stat. § 687.03, and, moreover,
constituted felony loan sharking, in violation of Fla. Stat. § 687.071. The bank
removed the case to the district court on the ground that the National Bank Act
provided the exclusive remedy for usury actions against national banks. Record,
Vol 1 at Tab 1. Once in the district court, the Armstrongs filed an amended class
action complaint, which contained the same state law claims as their initial
complaint; the amended complaint also asserted that the overdraft charges
exceeded the maximum interest allowable under the National Bank Act. Id. at Tab
10.
Colonial Bank moved the district court to dismiss the complaint for failure
to state a claim for relief, and the court granted the motion. Id. at Tab 26. The
Armstrongs appealed, and we affirmed. Armstrong v. Colonial Bank, N.A., 219
Fed.Appx 974 (Table) C.A. 11 (Fla.). The bank thereafter renewed the motion for
sanctions that it had filed with the district court prior to the Armstrongs’ appeal,
seeking an award of attorney’s fees under Fla. Stat. § 57.105. The Armstrongs
opposed the motion, arguing that a federal court could not impose attorney’s fees
pursuant to § 57.105. The court referred the motion to a magistrate judge, who,
relying in dicta in Bank Atlantic v. Blythe Eastman Paine Webber, Inc., 955 F.2d
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1467, 1478 n.11 (11 th Cir. 1992), concluded that fees could be awarded under §
57.105 but that she had insufficient evidence before her to determine a reasonable
fee. The judge therefore issued a report recommending that the district court grant
the bank’s motion and afford the bank leave to refile its motion with the evidence
necessary to support the fees it was claiming.
The district court adopted the report and recommendation over the
Armstrongs’ objection, and the magistrate judge subsequently recommended a fee
award of $13,975.50. The Armstrongs did not object to the recommendation, and
the district court accordingly adopted it and awarded the bank fees in that amount.
The Amstrongs now appeal.
The Armstrongs argue that § 57.105 does not apply in this case because rule
of decision the district court applied in deciding the case was a federal law, the
National Bank Act. We might be persuaded if the Armstrongs had brought this
case under the National Bank Act in the district court, but they did not. They sued
the bank under state law, and after the bank removed the case to district court, they
continued to rely on state law when they amended their complaint. True, the
amended complaint also cited the National Bank Act as a basis for recovery, but
stuck with their state law allegations to the bitter end.
The Armstrongs did not object to the magistrate judge’s determination and
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recommendation of the amount of attorney’s fees to be awarded to the bank, so
they may not now challenge the award the district court made – absent plain error
or a claim of manifest injustice, neither of which are present.
AFFIRMED.
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